Perales v. City of New York

—Judgment, Supreme Court, Bronx County (Luis Gonzalez, J.), entered December 11, 1998, which, after a jury trial and upon an order of the same court and Justice reducing the verdict, awarded plaintiff damages structured pursuant to CPLR article 50-B, affirmed, without costs.

Defendant’s sole appellate contention, that the trial court erred in declining to charge comparative negligence, is without merit. Although comparative negligence is usually a jury question, the trial court properly decided the issue as a matter of law, since no valid line of reasoning based on the trial evidence permitted the fact finder to conclude rationally that plaintiff was negligent (see, Rountree v Manhattan & Bronx Surface Tr. Operating Auth., 261 AD2d 324, 327, lv denied 94 NY2d 754). It was not plaintiffs burden to prove freedom from negligence by providing evidence that he used due care in walking along the icy street where he fell (see, Marshall v Handler, 237 AD2d 158). Rather, it was incumbent upon defendant to demonstrate that there was an alternative, safer route that plaintiff chose not to take (see, McGuire v Spence, 91 NY 303, 305-306).

Contrary to defendant’s characterization of the record, plaintiffs trial testimony did not contain an explicit admission that he saw the ice before he fell. In any event, even if the record permits competing inferences on this point, the issue is not whether he had notice of the hazard, but whether he could have avoided it (see, Kaplan v 48th Ave. Corp., 267 App Div 272, 274). At no time during the trial did defendant make any effort to show what reasonable precautionary measures plaintiff could have taken to avoid walking on the icy street (see, Porter v Avlis Contr. Corp., 57 AD2d 222, 225). Defendant’s arguments to this Court are similarly devoid of any concrete suggestions as to what plaintiff could have done differently. A comparative negligence charge is inappropriate where there are no specific factual allegations to support it (supra, at 226) and no valid line of reasoning which could lead the jury to find plaintiff comparatively negligent (see, Sundt v New York State Elec. & Gas Corp. [appeal No. 2], 103 AD2d 1014, 1016, mot to dismiss appeal granted 63 NY2d 771).

The verdict as to future damages, as reduced by the trial court on the defense motion, does not deviate materially from what is reasonable compensation, and the decision of the trial court reducing the award was proper (see, Matter of New York City Asbestos Litig. [Brooklyn Nav. Shipyard Cases], 191 AD2d 351, lv dismissed in part and denied in part 82 NY2d 682). Concur — Rosenberger, J. P., Williams, Lerner and Andrias, JJ.